SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document
in compliance with the law and SAFLII Policy
REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, JOHANNESBURG .
Case Number: 2021 -18191
In the matter between:
BARLOWORLD SOUTH AFRICA (PTY) LTD Applicant
t/a BARLOWORLD EQUIPMENT
And
PATRA W CONSTRUCTION AND PROJECTS CC First Respondent
LAWRENCE SITHOLE Second Respondent
JUDGMENT
NOKO J
(1) REPORTABLE: YES / NO
(2) OF INTEREST TO OTHER JUDGES: YES/ NO
(3) REVISED: NO
25 April 2025
DATE SIGNATURE
2
Introduction.
[1] The applicant , Barloworld South Africa (Pty) Ltd delivered a notice of
exception against the respondents’ plea and counterclaim . The exception is
predicated on the averments that the plea and the counterclaim do not present a
valid defence alternatively that it does not set out cause of action and/ or is vague
and embarrassing. The exception is opposed by the respondents on the grounds
detailed hereunder.
The parties .
[2] The applicant i s Barloworld South Africa (Pty) Ltd t/a Barloworld
Equipment, a private company duly incorporated in terms of the company law s of
the Republic of South Africa with its principal place of business at 1[ …] K[…]
Street, S […], Johannesburg
[3] The first respondent is Patraw Constructions and Projects CC , close
cooperation registered in accordance with the Close Corporation Act of the
Republic of South Africa and having its principal place of business at 7360 A nise
Street , Lotus Gardens , Pretoria West, Pretoria.
[4] The second respondent is Lawrence Sithole, adult male employed at 7[…]
A[…] and H […] S[…], L[…] G[…], Pretoria West.
Background [5] The parties entered into a lease agreement (agreement”) in terms of which
the applicant let a 426 backhoe loader (“loader”) bearing serial numbers and
letters EJ 402744 to the first respondent with effect from 14 August 2020. The
first respondent was represented by the second respondent and the applicant
was represented by Mr Karabo Sethunya (“Mr Sethunya”) .
3
[6] The respondent purchased an insurance cover from MiWay Insurance
Company (“MiWay”) to cover the ris k of, inter alia , loss of the loader. MiWay ’s
condition for the insurance cover was that the first respondent should instal a
tracking system on the loader . Mr Sethunya informed the second respondent that
a tracking device as required by MiWay was already installed on the loader . The
respondent thereafter took delivery of the loader.
[7] The loader was hijacked on 21 October 2021 and the applicant contacted
Mr Sethunya and reported the incident . Mr Sethunya conv eyed to the second
respondent that using the tracking system he is able to loc ate where the loader is
situated and then forwarded a map to the second respondent showing its
location. But the loader could not be recovered.
[8] The second respondent then lodged a claim with MiWay and on
investigation MiWay established that the tracking device was not installed hen ce
the loader could not be found. The claim was then rejected by MiWay on 13
November 2020. The first respondent wa s therefore unable to return the loader in
accordance with the agreement .
[9] The applicant launched proceedings against the respondent s as the latter
breached the agreement by failing to return the loader . The respondent delivered
the plea and contended that the respondent is not liable as there was misrepresentation by the employee of the applicant . In addition, that since the
loader was required to deliver on the tender awarded to the first respondent by
City of Tshwane Metropolitan Municipality the first respondent has a counterclaim
for the damages in the sum of R2 600 000.00 against the applicant . The first
respondent then instituted a counterclaim against the applicant .
[10] The applicant delivered notice of exception contending that the
respondents’ plea and counterclaim do not disclose a valid defence and/ or is
vague and embarrassing and that it should be struck out.
Parties’ contentions and s ubmissions
4
Point in limine
[11] The respondent s conten d in their heads of argument that the exception
was set down after the prescribed 15 days as required in the rules and without
application for condonation the sai d application should be struck out.
[12] In retort the applicant referred to Singular Systems ( Pty) Ltd
1 where it was
held that :
“Rule 23(1) that after delivering an exception, an excipient may apply to
the register within 15 days of deliver y to have the exception set down for
hearing. If the excipient fails to apply to have the exception set down in the
period as provided for in Rule 23(1) the respondent s may apply to have
the exception set down for hearing consistent with the Court ’s Practi ce
Directives. But also, t he respondent s may put the applicants on terms to
set the exception down for hearing, failing which they can apply to have it
struck out. ”2
[13] In view of the sentiments set out above that it is not compulsory for the
applicant to set down the application the point in limine is bound to fail and is
therefore not upheld.
Merits .
[14] The applicant contends that the respondents are ad idem that the
agreement entered into remains valid and enforceable. Further that in view of the
clauses in the agreement as set out below a defence and the counter claim on the
basis as alleged by the respondent is unsustainable.
[15] Clause 9.2 provides that
1 Singular Systems Pty Ltd and Another v Multichoice South Africa Holdings (Pty) Ltd and Others
[2023] ZAGPJHC 958.
2 Id at para 14.
5
“As far as permissible in law, the customer hereby waives any claim it may have or acquire against Barloworld or Barloworld’s Directors, officers, employees, contractors and or
agents:
(a) For any incidental, consequential or special damages (which is
deemed to include all loss of profit, loss of business, any loss or interruption of production or operations and any costs related to the delay of vessels), suffered by the customer and which arise from or in connection with, any cause of action, including contract, delict, strict or statutory liability).
[16] The applicant contended that the respondents waived any claim they may
have against the applicant in accordance with this clause. It also precludes a
claim for loss of profits. In retort the respondent contended that said clause is only applicable to damages which arose as a result of the delay in the delivery of the vessel. The respondents ’ counterclaim is not based on the delay in the
delivery of the vessels and as such this ground of exception is unsustainable and should be dismissed.
[17] Clause 9.6. provides that
“the customer expressly agrees that, except for any written warranty or
guarantee which is signed by both parties and which Barloworld expressly agrees in writing is part of the contract, as far as permissible in law:
(a) The goods are sold or let voetstoots (that is as they stand where
they stand) without any warranty and or guarantee including any implied or
common law warranty:
(b) …
(c) Barloworld does not make any repr esentations in respect of the
goods or the services and/or any part thereof for any particular purpose, other than as provided for in the operators and maintenance manual or expressly agreed between the parties.
6
[18] In this regard the applicant stated that there is no representation made in
respect of the m erx and none could be a basis for a cause of action by the
respondent. I n retort the respondent submitted that this clause is also not
implicated since it relates to the integrity of the machinery being acquired
whereas the respondents’ plea and counter claim relates to the installation of the
track ing system.
[19] Clause 8.5 provides that
“The customer acknowledges that these are the only trading terms and conditions which apply between Barloworld and the customer, unless separate terms and conditions are negotiated and agreed between the parties in writing (e.g. rental with an option to purchase contracts).”
[20] Clause 8.8. provides that
“Each contract is the whole agreement between Barloworld and the customer and contains all the express provisions agreed by the parties,
about its subject matter .”
[21] Clause 8.10 provides that
“No variation of the contract will be valid or effective unless recorded in
writing and signed by the customer and a director or general manager of Barloworld. ”
[22] The applicant contended that based on the aforegoing any representation
outside the agreement will not be effect ive unless same was reduced into writing
and signed as envisaged above. Further that the respondent is not raising fraudulent misrepresentation which could have formed the basis for a valid claim.
[23] The respondent s submitted in retort to the argument that there is no
challenge to the validity of the agreement, that indeed the plea and counterclaim
is not intended to vary the lease/sale agreement entered into by the parties and
to this end the clause on variation is not implicated. That notwithstanding the
7
respondent s persist with the claim that the clauses referred to above do not ous t
their right to institute a civil suit as crafted.
Duty of Care [24] The applicant submitted that the claim based on duty of care allegedly
owed by the applicant to the respondent was not properly explained and nothing
to countenance the said claim could be discerned from the pleadings. In any
event any claim has been waived in terms of clauses referred to above.
[25] In retort the respondent contends that there was a duty of care on the part
of the applicant to ensure that the “… proper and accurate representations is
made to the respondents before the delivery and taking of possession of the backhoe loader. Further that the evidence which will be led will demonstrate a
valid claim because, wrong fulness must be determined with reference not only to
the misrepresentation itself, but also to the less suffered .”
3
[26] The respondent’s plea states that the applicant misrepresented to the
respondent that a tracker was installed on the loader which misrepresentation
induced the respondent to enter into the agreement with the applicant.
Countercla im
[27] The applicant contends that the amount of R2 600 000 claimed by the first
respondent as loss of profit has not been pleaded in detail as envisaged in the
rules and the applicant is unable to plead thereto. The letter of appointment
attached to the respondent s’ pleadings indicates certain requirements which
must be met before the first respondent is appointed. The first respondent has
failed to indicate in the pleadings that same were complied with. As indicated
above, applicant argued, the loss of profit as a basis for a claim has also been
waived in terms of the agreement.
3 Para 53 of the Respondents’ Heads of Argument at CL 043- 16.
8
[28] The respondents contend the particulars of cl aim set out in the
counterclaim clearly indicates that the said amount is the loss of profit which could have been generated had there been no misrepresentation which led to the
inability to receive a replacement of the loader necessary to implement the tender
requirements with the City of Tshwane.
Legal principles and analysis. [29] The principles underpinning exceptions have been crystallised in several
court pronouncements that the object is, inter alia , to dispose of the case or a
portion thereof expeditiously and without having to incur unnecessary legal costs. One of the considerations as referred to in the respondent’s argument is that “…over -technical approach should be avoided because it destroys the usefulness
of the exception procedure, which is to weed out cases without legal merit.”
4 In
addition, exception would ordinarily be upheld where the applicant can
demonstrate that “… upon every interpretation which the particulars of claim could reasonably bear, no cause of action was disclosed.”
5
[30] The respondents’ defence and the counterclaim is grounded on the
argument that there was a misrepresentation by an employee of the applicant.
These contentions are met with an applicant’s argument that the agreement
between the parties clearly states, first, that the respondent waives claim based
on any cause of action and the respondent s chose not to challenge this clause.
Secondly, that any other representation would not be binding unless signed off by
the parties and this clause is not being challenged either. To the extent that the
respondent s confirm that the plea does not and is not intended to vary the terms
4 See para 15 in Living Hands (Pty) Ltd NO and Another v Ditz and Others 2013 (2) SA 368
(GSJ).
5 Francis v Sharp 2004 (3) SA 230 (C) at 237D -I. “[I]t follows that where an exception is taken, the
court must look at the pleading excepted to as it stands: no facts outside those stated in the
pleading can be brought into issue and no reference can be made to any other document.” See
Superior Court Practice at B1- 151.
9
of the contract which remains intact, means that any claim should fall within the
contract failing which such a claim would not be sustainable. The respondent would have to challenge those clauses in the contract which are insurmountable hurdles to their claim more particularly the waiver of claims clause and non-
variation clause. As it is dealt with comprehensively below the arguments
advanced in this paragraph are of no consequences and need not delay the
prosecution of this lis .
[31] Other legal principles implicated by the applicant’s submission includes
Shifren rule, entrenchment clause and waiver . There is a propensity to confuse
waiver and variation clauses in the contracts. It was stated by the SCA in Phoenix Salt Industries (Pty) Ltd
6 that :
A waiver is an abandonment or relinquishment of a right or privilege in a
contract which is expressed through an explicit statement or conduct that
indicates a voluntary decision to give up that right or privilege, without modifying the contract's terms. On the other hand, a variation involves making changes to the terms of a contract, either through mutual
agreement between the parties or through unilateral action by one party
with the consent of the other. A party exercising a waiver chooses to walk
away from a privilege that might have been derived from the contract while the contract remains extant , whereas a variation alters or amends the
terms of a contract.’7 (underlinin g added).
[32] Though not addressed clearly in those terms the respondents’ case is that
the waiver referred to in the clauses in the agreement should relate to rights
which should be flowing from the contract .
8 In this case the rights which are
sought to be waived relates to a distinct contract of the insurance cover with
MiWay. The utterance which were made by the applicant’s employee were made
6 Phoenix Salt Industries (Pty) Ltd v The Lubavitch Foundation of Southern Africa (330/2023)
[2024] ZASCA 107 (03 July 2024)
7 Id at para 23.
8 Noting the Court cannot be held ransom or be detained by mischaracteri sation and
misapplication or incorrect identification of legal principles by the parties.
10
in relation to the contract which was entered into between the respondent and the
MiWay and not ancillary to the contract between the applicant and the first
respondent. One may be tempted to interpret the clauses in the contract between
the parties and conclude that any other claim whatsoever is waived, whether
linked to the specif ic contract or not . This may be too extreme or over stretched
interpretation and may lead to absurdity . As a way of example if the meaning is
that fluid, then the second respondent may have waived his right to sue the
employee from defaming him whilst still at the premises of the applicant or even
sue for th e injuries sustained as a result of the slippery floor as a result of
negligence of the applicant’s cleaners . On a proper interpretation the claims
excluded (or waived) should be based on or linked to the contract between the
parties being lease agreement and not Insurance agreement .9
[33] The respondent s have further correctly stated that the inf ormation about
installation of the tracking device cannot be implicated by clause 9(6)(c) which
exclude any representation about service and/ or products or any part thereof as
the installation of the tracking system is not part of the products and/ or service
which the applicant offered to the respondents in terms of the contract.
[34] The contention that the quantum of damages does not comply with the
provisions of rule 18 of the Uniform Rules of court is unsustainable as the
respondent s did set out the amount claimed. In any event it is not unusual that
the quantum claimed would be globular at the initial stage and be detailed during the exchange of pleadings. The counsel for the applicant having contended that
non-compliance with rule 18 may be construed as irregular and susceptible to a
rule 30 application
10. Based on those assertions, exception may not be an
inappropriate route to undertake. In addition, as highlighted above the damages
9 Noting that a waiver would be for a right conferred by the terms of the contract . And further that
one need to know the rights he is waiving, Christie RH having stated that “…there is ample
authority that it must be clearly proved that the person who is alleged to have waived knew what
those rights were.” Christie RH “ The Law of Contract in South Africa”, 5th ed, LexisNexis
Butterworths .
10 See Applicant’s Heads of Argument at 54 CL 04- 27.
11
which arose emanate from the contract entered into with MiWay and clearly
distinct from the contract with the applicant.
[35] In certain instances a counterclaim may however defeat an exception.
Where the claim in the counterclaim is illiquid the lis may still proceed and
adjudication of the counterclaim may be dealt with first in accordance with the
provisions of rule 22(4) of the U niform Rules of Court except where rule 22(4)
has been specifically excluded in the contract.
Conclusion
[36] Having stated that the pleadings do present the facts which the applicant
can readily plead to there is no reason why other grounds raised should detain
me. Furthermore, as set out above being over technical should be frowned upon.
In the premises the application is bound to fail. Furthermore, the contention that
the amount claimed by the respondents has not been dissect ed to the tee does
not bar the applicant from pleading. Ordinarily at the end of the trial the first
respondent would be granted an order only for the amount /damages proved.
[37] Notwithstanding the above legal position, it is incorrect for the respondents
to contend that the agreement entered into with the applicant was influenced by the misrepresentation `by the applicant’s employee. The argument on said misrepresentation would not obtain having regard t o the clauses referred to
above. In any event, the information was only made available for the purposes of purchasing an insurance cover. Though the pleadings should not be crafted with military precision it is required as a minimum that the counterclaim should
demonstrate that the conditions set out in the tender have been complied with. To this end the exception is sustainable.
Costs
[38] The general principle is that the costs should follow the result and am not
persuaded to upset this well- trodden path.
12
[39] Order
1. Respondent ’s point in limine is dismissed with costs .
2. The exception is upheld with costs .
3. The respondents are granted leave, if so advised, to amend their
plea and counterclaim within 20 days from the date of this order.
M V NOKO
Judge of the High Court,
Gauteng Division, Johannesburg.
This judgement was prepared and authored by Noko J and is handed down
electronically by circulation to the Parties / their legal representatives by email and by uploading it to the electronic file of this matter on CaseLines. The date of the judgment is deemed to be 25 April 2025, at 15:00.
Date s:
Hearing: 20 November 2024.
Judgment: 25 April 2025,
Appearances:
For the Applicant : L Hollander
Instructed by : AD Hertzberg Attorneys
For the Respondent : M R Maph utha.
Instructed by : Morakile Tibane attorneys I nc.